### The Honorab le Russell G. Clark, United States District Court 1 

### for the Western District of Missouri. ___________ No. 95-4232

___________ Lawrence Wayne Corum, * * Appellant, * * v. * Appeal from the United States * District Court for the Thomas K. McGuire, Jr., Greene * Western District of Missouri. County Circuit Court Judge; * Mel Carnahan, Governor of the * [UNPUBLISHED] State of Missouri; Dr. White, * * Appellees. *

___________ Submitted: October 7, 1996 Filed: October 15, 1996

___________ Before FAGG, WOLLMAN, and MURPHY, Circuit Judges.

___________ PER CURIAM.

Lawrence W. Corum, a Missouri inmate, appeals from the distric t court's order granting the defendants' motion to dismiss his 42 U.S.C. §

1 1983 action. We affirm.

Corumfiled this section 1983 action against then Greene Count y Circuit Court Judge Thomas K. McGuire, Jr., Governor Mel Carnahan, an d former Missouri Department of Corrections employee Dr. White, seekin g declaratory relief and damages. Corum claimed that his equal protection and due process rights were violated because he was charged by information , rather than indictment; because he pleaded guilty and was sentenced b y Judge McGuire under

### -2-

a repealed statute; b ecause Judge McGuire was mentally incompetent at the time he accepted Corum's plea; and because the disparity between hi s sentence and those Judge McGuire gave to "other individuals sentenced by the co urt" demonstrated judicial bias. Corum further alleged Governo r Carnahan's office deceptively led his wife to believe his petition fo r clemency would be ser iously considered. As to Dr. White, Corum contended that he was first told he tested positive for tuberculosis and then told he tes ted negative, and that, notwithstanding his negative results, h e submitted to unnecessary treatment after Dr. White told him refusal t o submit to the treatment would result in "serious consequences"; Coru m claimed the unwanted treatment constituted an assault and battery. Upon the defendants' motions, the district court dismissed Corum's complaint fo r fail ure to state a claim pursuant to Federal Rule of Civil Procedur e 12(b)(6).
We review de novo the grant of dismissal under Rule 12(b)(6), v iewing the complaint in the light most favorable to Corum, and affirming only if it appears beyond doubt that he can prove no set of facts that woul d entitle him to relief

. See Weaver v. Clark , 45 F.3d 1253, 1255 (8th Cir. 1995) (standard of review).

Corumcannot challenge the validity of his conviction and sentenc e in this section 1983 action, but must do so thro ugh a habeas corpus action against the appropriate Missouri prison official, and then only after he has exhausted all of his available adequate state remedies. See Preiser v. Rodriguez , 411 U.S. 475, 489-90 (1973); Frank lin v. Webb , 653 F.2d 362, 364 (8th Cir. 1981) ( per curiam) (correct to focus on nature of complaint rather than relief so ught); Offet v. Solem , 823 F.2d 1256, 1258 (8th Cir. 1987) (applying Preiser to § 1983 action seeking declaratory relief)

. Furthe rmore, to the extent Corum seeks damages for his allegedl y unconstitutional conviction and sentence, his section 1983 action is barre d until he can show his conviction or sentence has been invalidated. Se e Heck v. Humphrey , 114 S. Ct. 2364, 2372 (1994);see a lso Stump v. Sparkman , 435 U.S. 349, 355-57 (1978) (judicia l

immunity).

Co rum's claim Governor Carnahan deceived him concerning clemenc y consideration does not implicate any constitutional right. See Cross v. City of Des Moines , 965 F.2d 629, 631-32 (8th Ci r. 1992); Otey v. Hopkins , 5 F.3d 1125, 1128-29 n.3 (8th Cir. 1993) ("standardless" clemency statute
crea tes no protectable interest, only right to ask for mercy), cert
. denied , 114 S. Ct. 2768 (1994); Whitmore v. Gaines , 24 F.3d 1032, 1034 (8t h Ci r. 1994) (clemency denial discretionary absent interest created i n statute).
Finally, even assuming Corum's claim against Dr. White may b e liberally construed as a claim that Dr. White wa s deliberately indifferent to Corum's medical needs, it fails because Corum did not allege that Dr. White knew that Corum 's positive test results were not accurate. See Lee
v. Armontrout , 991 F.2d 487, 489 (8th Cir.) (per curiam) ("prison official s must tes t prisoners for tuberculosis and treat them . . . if they tes t positive in order to prevent widespread infection"), cert. denied , 510 U.S

. U.S. 875 (1993); Boyd v. Knox , 47 F.3d 966, 968 (8th Cir. 1995) (citation omi tted) (prison officials are deliberately indifferent to prisoner' s serious medical needs when they actually "know[] of and disregard[]" those needs).


### Accordingly, we affirm.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.